Earlier this year, Magistrate Judge Nancy Koppe issued a decision, Hinostroza v. Denny's, Inc., No. 2:17-cv-02561-RFB-NJK (D. Nev. June 29, 2018), granting in part and denying in part the Defendant's motion to compel. The case was notable because the motion included a request to produce data from a FitBit device worn by the Plaintiff.
The case concerned a slip and fall accident that occurred at a Denny's restaurant. The Motion to Compel included requests for medical records, property damage reports, and insurance policies and claims, or releases to obtain such information. Hinostroza objected on the basis that the request was irrelevant, overboard, and unduly burdensome. She was involved in a car accident in 2015. Noting the standard for discovery under Fed. R. Civ. P. 26(b), the Court ruled that these records should be produced and ordered the Plaintiff to sign the necessary releases. Judge Koppe ordered the production of text messages, emails, and telephone records requested by Denny's which were sent to individuals about her injuries shortly after the incident at the restaurant. The order also directed the production of Hinostroza's employment records.
Denny's requested data from a FitBit tracker worn by Hinostroza. Data was requested for five years prior to the incident at the restaurant through the present. The data could show how active Hinostroza was before and after the slip and fall. The Plaintiff objected on the basis that the data was not in her possession, custody, or control. The Court ruled that an objection to the request as overboard and unduly burdensome was waived because it was not made in the initial response to the request for production. The order required the Plaintiff to describe the search she performed for the requested data so it could determine if a reasonable inquiry was made.
Social media data, from the same time period, was also requested and Hinostroza objected on the grounds that it was irrelevant, overboard, unduly burdensome, and a violation of her right to privacy. Judge Koppe's decision states that, "information from social media is relevant to claims of emotional distress because social media activity, to an extent, is reflective of an individual's contemporaneous emotions and mental state." Id. at 10. Social media postings from a long data range are needed because a fleeting moment would not illustrate a party's physical and mental well being. "[S]ocial media discovery must allow the requesting party a sufficient sample size from which a potential pattern of content could reveal an emotional or mental state or physical capability that undermines a party’s claim." Id. The decision directs Hinostroza's attorney to review and produce relevant postings from 2015 to the present.